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Final Copy 290 Ga. 321 S11A1469. BROWN v. THE STATE.

THOMPSON, Justice. Appellant Wilbert Brown appeals from the trial court's denial of his motion for out-of-time appeal. For the reasons that follow, we affirm. On September 16, 1993, appellant entered negotiated pleas of guilty to charges of murder and possession of a firearm by a convicted felon. Pursuant to the agreement, he was sentenced to life in prison on the murder charge and a concurrent five-year term in prison on the possession charge. On June 4, 2010, appellant filed a motion for out-of-time appeal which the trial court denied on December 16, 2010. This appeal followed. 1. It is well established that a criminal defendant has "`no unqualified right to file a direct appeal from a judgment of conviction and sentence entered on a guilty plea,'" and "`[a]n appeal will lie from a judgment entered on a guilty plea only if the issue on appeal can be resolved by facts appearing in the record.'" Barlow v. State, 282 Ga. 232, 233 (647 SE2d 46) (2007). "The ability to decide the appeal based on the existing record thus becomes the deciding

factor in determining the availability of an out-of-time appeal when the defendant has pled guilty." Grantham v. State, 267 Ga. 635 (481 SE2d 219) (1997). The denial of a motion for out-of-time appeal is a matter within the discretion of the trial court. A court's decision to deny such a motion will not be overturned absent an abuse of discretion. Moore v. State, 285 Ga. 855 (1) (684 SE2d 605) (2009). 2. Appellant contends he was entitled to an out-of-time appeal because his indictment was void for failing to allege what instrument was used to shoot the victim. However, where an issue raised by a defendant in a motion for out-of-time appeal can be resolved against him based upon the existing record, there is no error in denying the motion. Brown v. State, 280 Ga. 658, 659 (631 SE2d 687) (2006). The indictment in this case alleges appellant did "with malice aforethought cause the death of Eric Patterson, a human being, by shooting him." These allegations were sufficient to place appellant on notice that he was being charged with causing the death of the victim by shooting him with a firearm. See OCGA

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